Saleh’s Amnesty: Providing Peace or Preventing Remedy?

On January 21, 2012, the Yemeni parliament passed a law granting President Ali Saleh immunity for all “politically motivated” crimes against the people of Yemen. This statement of immunity formed the substantive part of a Gulf Cooperation Council (GCC) brokered deal between Saleh and the new Yemeni parliament. The International Covenant for Civil and Political Rights (ICCPR) requires signatory states to ensure that victims of violations of the ICCPR, such as those allegedly committed by Saleh during the recent Yemeni revolutions, have access to an effective remedy. The parliament’s decision to neutralize Yemeni citizens’ ability to prosecute President Saleh in exchange for his voluntary abdication of power represents a violation of Yemen’s obligations to provide an effective remedy for violations of the ICCPR.

As part of the January agreement, Saleh ended his career as President and transferred power to Vice President Abd-Rabbu Hadi. Hadi went on to run unopposed in the February 2012 election, winning 99% of a vote in which barely 64% of the citizenry participated. The new immunity law protects Saleh and his aides from prosecution for their role in widespread violence against civilians peacefully protesting the government since February 2011, resulting in the death of around 2,000 civilians and military defectors. Protesters calling for constitutional and governmental reform suffered from armed attacks, arbitrary arrests, torture, and forced disappearances. The immunity also extends to public prosecution of crimes committed by Saleh and his aides over the course of his 33-year rule, including the government’s controversial use of artillery against the Huthis in Northern Yemen during the period of unrest Yemen experienced between 2004 and 2010. While lauded as an efficient way to put a prompt end to the bloodshed, the immunity deal garnered widespread Western and GCC support due to concerns that al-Qaeda, which enjoys a strong presence in Yemen, might be strengthened by continued unrest.

The new immunity law violates Yemen’s international legal responsibilities under the ICCPR, to which Yemen is a party. Article 2 of the ICCPR states that “[e]ach State Party undertakes . . . to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” Thus, the ICCPR guarantees an effective remedy to any citizen whose rights have been violated, regardless of whether the perpetrator was acting in his official capacity. Despite the political considerations in Yemen, General Comment 31 of the Human Rights Committee, which informs analysis of states’ obligations under Article 2, notes that “[t]he requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.”

Amnesty can be a powerful conflict resolution tool, but guidelines published by the Office of the High Commissioner for Human Rights (OHCHR) prohibit broad, blanket grants of amnesty that infringe on essential human rights by preventing prosecution of those who “may be responsible” for crimes against humanity. The reintegration of combatants back into society, both judicially and socially, is a common obstacle to national repair following intrastate conflict, and immunity from prosecution is a customary way to begin reconciliation as discussed by the International Committee of the Red Cross (ICRC). This comes with the explicit exception that such amnesty should not be used to allow those with command authority and suspected of war crimes to evade punishment.

The new immunity law signed by President Saleh contravenes both the letter and spirit of the ICCPR, and a fundamental misuse of amnesty as a remedy for any government-sponsored prosecution for crimes committed against the people of Yemen. Without making a judgment as to President Saleh’s guilt or innocence by preventing the requisite investigation, the Yemeni parliament has acted inconsistently with international law. The General Comment notes that failure to investigate violations of the aforementioned rights, implicitly folded into the government’s blanket grant of criminal immunity, may constitute a separate breach of the ICCPR.

Internal politics within Yemen make it unclear as to whether conventional political channels of overturning a policy like this one would even be possible. The Supreme Court is effectively controlled by the Executive branch, and one chamber of the bicameral legislature—the Sura Council—is entirely appointed by the President. The President’s majority party controls 238 of the 301 seats in the other legislative chamber. Given the present state of internal Yemeni politics making domestic change unlikely, a diametric shift at the highest level of parliament as the issuing body is necessary to ensure compliance with Yemen’s international obligations. If legislation like this immunity law is used to parlay citizens’ internationally guaranteed right to redress in exchange for political stability, the weight of international legal commitments would be insignificant in the minds of policymakers and national entities responsible for enforcement.